We renamed the small patch of ground outside the Downtown post office to Peace and Justice Plaza to honor its central place in Chapel Hill’s progressive history. Before the Town acquired the property in the 70′s, its unique status as a slice of Federal land front-n-center in our community made it an invaluable refuge for local civil rights activist who wanted folks to see what others didn’t want to be seen – that even educated Chapel Hill bore the stain of racial inequality.

Why did Council slide these changes altering a historical dynamic through, undermining the meaning of Peace & Justice, without reaching out to the community? Why the desperate speed?

It appears because the Town couldn’t figure out how to evict one remaining protester who by most descriptions was a homeless man using the Occupy movement as an excuse for staying. Rather than address that specific issue, Council chose to hastily adopt a potentially very chilling approach.

Until we see specific guidelines, drafted out of sight of the community – chiefly by the Town Manager – we will not know.

For at least 50 years, a small patch of ground outside Downtown’s Post Office has served as our Town commons. This historical precedent was set by local civil rights activists who sought to circumvent Town and State attempts to shutter the voices raised against racial inequality.

They sought refuge on that small piece of Federal land because efforts to evict would become – literally- a “Federal case”. Sadly, they expected Federal courts would be more sympathetic in supporting their Constitutional right to assemble, to speak, to petition and to ask for redress of grievances than our local community.

Over time, protection of those fundamental rights has shifted towards local governments. Chapel Hill citizens, some at great costs, have stood up and fought to maintain and expand key civic values including equality in their recognition of same-sex partners.

I was reminded of how unique our community is during a 2003 anti-war protest in Raleigh.
While his supporters got a front-row seat, protesters were herded into a chain link enclosure well away from President Bush’s cavalcade. Out of sight, out of mind. By then, the Federal courts had decided that a bureaucratically proscribed “designated free speech zone” was acceptable.

Tonight you are being asked to make what appears to be a few “minor” changes to Town ordinances. That is not the case.

The suggested changes allow the Manager to dictate what neatly fits into a particular idea of reasonable discourse. Times, locations and extent of exercise of Rights will be determined by the somewhat vague guidelines he as his staff deem necessary.

I’m disappointed that the recent occupation of the one place in our community reserved and cherished for free assembly didn’t serve as a lesson in how to preserve and even promote more civic discourse. Rather it seems to have served as a call to arms to cordon off what makes some folks uncomfortable.

In a free and democratic society we must err on the side of openness and access to the public commons. We must tolerate a process that can be a bit unsettling and untidy.

There are vanishingly few public spaces left for assembly of citizens. If not Peace & Justice, where?

During the Chapel Hill 2020 process Downtown has been touted as the place for the community to come to meet with many proposals for an enhanced public square.

Now is the time to ask – “How public?”

Please put off further amendments constraining our public commons until our community has fully weighed in.

I got into a bit of a discussion with Mayor Mark Kleinschmidt about a loaded equivalence described in the Town legal brief.

The memo describes a scenario where two groups at polar extremes want to occupy the plaza. The examples used: Nazis and Jewish community, KKK and NAACP members, Anarchist and peace officers.

Of course, the hatred expressed by the Nazi and KKK members against the Jewish and African-American communities is well-documented and exemplified by horrendous acts.

I learned a little about Anarchism in university 30+ years ago and have since endeavored to learn more after the recent Yate’s Motor occupation and police raid. From what I’ve read and learned from some of the local adherents, Anarchism is not a political movement but, rather, a political philosophy with many avenues of expression.

There is nothing intrinsic to that political philosophy requiring vilification, especially at the level suggested by using the KKK and Nazis, of the police.

It was inappropriate of staff, and surprising of the majority of Council, to endorse such an equivalence.

Local heavyweights US Rep. David Price, former State House Speaker Joe Hackney and House colleague Verla Insko along with State Senator Ellie Kinnaird (who changed a tire on the way to the meeting) attended.

Price, just returned from the budget breakdown nonsense in Washington, gave a rousing call to arms pointing out that the Tea Party express was bearing down on the nation – and last night’s buffoonery was just the first in many salvos aimed squarely at middle America. Verla and Joe sketched out the dire legislative morass they face in the State house and related how the turnover in control of the House has actually brought the Democratic caucus closer.

There were 44 prepared petitions put before the convention – a long list to dispense with in less than the budgeted 4 hours. Mayor Mark Kleinschmidt, who was running the proceedings, was able to work through a good chunk by getting collective assent upfront.

Though it has been a long time since I participated in a convention, I came prepared to offer an amendment to the petition calling for support of the Board of Commissioner’s [BOCC] recent plan to hold a Nov. 2011 referendum increasing our local sales tax 0.25%.

The BOCC has proposed splitting the anticipated $2.5M per year evenly between economic development and education. I asked the gathered folks to support a change in that allocation from 50/50 to 33% for economic development, which would adequately support the economic initiatives the BOCC has already laid out, and 66% to restore and support the many human service programs curtailed by the County these last 5 years.

My neighbor Tom Henkel seconded the call and an interesting discussion followed. Unfortunately, my suggested changes were completely shot down. It was great to get a strong dose of participatory democracy even if my effort was for naught. I appreciate the kind and thoughtful consideration the convention offered.

Afterwards, BOCC member Steve Yuhasz came over and graciously encouraged me to keep on pressing the BOCC to find money for human service programs. I told him I wasn’t going to give up.

If tonight’s hearing was cast as a made-for-television movie, the writers had a ready made character in Chapel Hill government’s own Voldemort. “He who must not be named” was not only responsible for starting the cascade of events leading to Clark/Bigelow’s termination but also stifling attempts to intervene before catastrophe struck.

The man in the shadows is a convenient trope but not a likely explanation for the evident failures in the Town’s disciplinary process.

As much as it has been discussed, the fate of the workers doesn’t hinge on whether race played a role in their termination or possible union busting efforts by the Town or documented poor performance or complaints by citizens over debris handling or offhanded remarks or “flinging arms” or rude remarks or angry calls for water or almost any of the other points/counterpoints flung about the last few months.

Their fates, I think, hinge on whether the P.A.C. thinks the two were afforded proper due process.

Town lawyer Sneed’s suggestion that the Town followed “the letter of the law” certainly doesn’t square, as Terri Buckner points out, with the Town’s own code.

Al McSurely, an exceptional Constitutional lawyer, argued persuasively that Ms. Sneed’s suggestion was at odds with both the Constitution and State statutes.

The P.A.C, though, doesn’t have to rely on interpretations of Town code or State statute or even the Constitution to determine if the workers were given due process, they only need rely on the testimony given this evening.

Did it make sense that the workers could be prepared to argue their case when the pre-disciplinary letter omitted any specific list of allegations, any discussion of evidence?

Did it make sense that the workers’ counsel would advise strict disengagement and leave the Town with only one option – termination? Or was it more likely, when faced with the end-product of two weeks of professional investigations, multiple weeks of Town work product to review, they asked for a bit more time to respond?

Was it reasonable to expect the workers counsel to work through what turns out to be an incomplete record of events, fill in the gaps and schedule a follow-up meeting in less than 3 days?

Why did Mr. Norris dig in his heels, not turn over the incident reports and a specific list of allegations in that meeting? Was it absolutely necessary to read through the documents together?

Given all that – the fixed attitude on conducting the pre-disciplinary hearing in a way which loaded the die against the workers, the lack of specific charges, the vagueness of some allegations, the dearth of supporting documentation, etc. – were the men afforded proper due process?

Unlike last week, I’ll be posting more abbreviated comments about testimony, tenor and process as the hearing progresses.

Anita Badrock has once again been chosen as the Chair. She reminds the audience that the committee is “not to replace the judgement of management” as per the Town’s ordinance (here).

(a) Conduct grievance and appeal hearings and render advisory opinions to the manager.
(b) Develop and maintain adequate records of all its proceedings, findings, and recommendations.
(c) Inform the employee(s) and the manager in writing of its findings and recommendations in all cases referred to it.

Clyde Clark is here tonight to ask to be reinstated, to get the safety and racism problems in Public Works fixed.

Mr. Norris, head of Public Works, starts off by being questioned by the Town’s lawyer Ms. Sneed. He says that he became aware of “several” citizen complaints – Clark was harassing folks on his route. It started out as 1 or 2 complaints about handling to debris and evolved into 5 complaints in total.

The nature of the complaints changed – residents were afraid of retaliation, they were fearful of the workers – at this point Norris contacted head of HR and Town Manager Stancil as these latter 3 complaints had risen to the point of being “serious incidents”.

The “serious incidents” documented in these emails (where are the emails, will they be public records?) under the procedures of the Town required that the two workers be immediately suspended and a pre-disciplinary process be started.

Sneed asks Norris if he was aware of “any grievances” filed by Mr. Clark or others (once again the two workers are lumped together). He says, “No.” This is the second time he has affirmed that he had no knowledge of the EEOC complaint or the filing of the safety grievances.

Sneed continues – “there have been allegations” that the firing was motivated by retaliation – she is making the case that there can be no foundation for those allegations given that Norris was unaware of grievances.

New mystery witness testimony from “Miss/Mrs. Johnson”.

Clark’s counsel Al McSurely once again objects to receiving testimony from an anonymous source.

“Mrs. Johnson” says she doesn’t have much to add to her statement of last week. Sneed asks about the combined bad behavior of Clark/Bigelow. Johnson says she doesn’t have much to add but when reminded that there is a new committee member this evening decided to comment on one new piece of information…

Johnson says that a comment made by Al McSurely in the Sunday newspaper wasn’t accurate – she didn’t hide behind blinds but had direct interactions with the workers.

She has lived in Chapel Hill for awhile and is familiar with trash pickup procedures. Clark/Bigelow were not picking up yard waste for weeks. When she asked them to do a better job their performance worsened – after the truck left her street she would have to go out and clean up debris spread across the road. She continued to ask the two for better service but as time went on the two workers attitude became more harassing and belligerent. Finally, fed up with trying to deal with the problems directly, she called the Town.

Like last week, she reaffirms that she didn’t call the Town to get the men fired – she just wanted a new crew that would do their job effectively. She continues to be boggled by the press and community reaction as per racism – this was not a matter of race but of poor performance (CW: I don’t recall anyone suggesting the witnesses were racist rather that the Town had endemic racism in PW management).

Al McSurely asks Johnson if she recalls what Mr. Clark looks like – she stumbles around finding words but eventually says “I know what he looks like”. When McSurely asks if she remembers the “Biden incident” 7/22 she says she doesn’t know how McSurely knows where she lives or who she is – she doesn’t want to add anything more to her previous comments.

One Board member asks if there were any additional witnesses to these events, including the “Biden event”. She responds that she usually ran out when she saw the trash haulers – the interactions were quick – not witnessed.

When asked by Board member Delores Bailey if she knew when her trash collectors made the rounds – “Mrs. Johnson” hung up.

New phone witness – “Mrs. Jones”. Didn’t want to come forward because of all the racial allegations – she didn’t want to be labeled a racist. Responding also to McSurely’s comments in the Chapel Hill News Sunday article – she reiterates that this was a simple case of very poor performance by the collectors. She contacted the Town to complain about the escalating poor performance and requested a new crew – a crew like her old crew who performed their jobs well.

McSurely asks “Jones” how many times she contacted the Town about the poor performance, the mess being made. “Five or six?” when Jones can’t come up with a number. She stumbles about a few moments – “One time?” Jones – “More, maybe two.” McSurely, “Who did you talk to?”. Jones, “A young woman.” She doesn’t recall. She also said no PW management came down to talk to her.

McSurely asks Jones if she realized that Bigelow was on the former crew she liked so much – she didn’t know – wasn’t relevant to her.

Couple committee questions – Bailey, when did the collectors come? Jones – sometime in the morning, unsure…

Boardmember (BM) question reiterated by Anita (the phone testimony was plagued with sound problems) – Did Jones know anything about the Biden incident? Jones doesn’t want to talk about it – she refuses to comment on other complaints but would rather stick to her statement – the crew was doing a terrible job, when she asked for better service they adopted an aggressive, confrontational attitude – she contacted the Town and the current series of events started…

Notably, Jones did not confirm statements made by CAI and the Town that the two were frightening presences or that there was any particular incident which scared her..

Moving on to Larry Stroud, PW sanitation manager – 11 years on the job. Did he have any problems with Clark before – “It’s been a rocky road” – relates an incident several years ago where Clark refused to clean up some broken bikes and other “white goods” in Northside – like other times – Clark blew him off.

Stroud continues to paint a picture of an employee with a long history of inter-personal issues, with complaints akin to those on Greenwood. Stroud said he intervened numerous times – had counseled Clark – but that Clark was just one of those folks “who wouldn’t listen”.

Sneed has him walk through the latest personnel review where he gave Clark a good report. In working through the document it becomes clear that additional comments do demonstrate concerns – including Clark’s need to improve his job performance, to improve his attitude, to improve his interactions with customers.

Why didn’t Sneed take this to his management – the superintendent. He did but stopped because upper management wasn’t attending to the issues. Sneed – “Why?”
Stroud, he seemed intimidated. Sneed – “Intimidated? By who?” Superintendent was afraid that the two workers would go to “Fred”. Sneed – “Fred?” Stroud – “Fred Battle.” (Fred was the leader of the local NAACP).

The superintendent was concerned that Fred would stir up trouble and he just didn’t want to deal with the repercussions. Stroud continued to try to help the two – Clark moreso – but that his assistance didn’t help. Stroud tells about how Clark was on the verge of losing his job and his mother came to Public Works – she was crying – she begged the Town to keep her son on – they did and Clark straightened up – “for 3 weeks”. Back to old bad habits after that…

McSurely cross-examines. Turns out Stroud worked on a truck servicing Greenwood for years. Stroud had several side jobs in the neighborhood. He cut grass for a particular woman that, if I read McSurely right, was one of the two we have heard about. McSurely asks about the “Biden event” – did Stroud know about it? Not particularly.

Now Al (McSurely – Al is shorter) delves into why these couple reports made on Clark’s problems in 2009, 2010 didn’t end up in disciplinary proceedings. Why didn’t the superintendent take initiative?

Stroud says there was a lot of turmoil in the department, especially earlier this year. The person “who shall not be named” is Harv Howard. The Town claimed in the documents submitted to the NC Employment Security Commission (ESC) that “Harv dropped the ball”. Al asks Stroud if Harv dropped the ball – does he agree? Stroud can’t really say…he said that by the time the chain of events started which Kerry down the road to losing his job Harv was on the way out….

The Town and Anita asks that further discussion on the Harv Howard matter stop. Al asks the Town’s attorney Ralph Karpinos if the Board can review Harv’s personnel record to see why Harv was discharged. Ralph says yes. Al asks that the Board review Harv’s record – to see why he was let go – and to determine if there is any evidence within which bears upon the Clark and Bigelow case.

NOTE: Just after Mrs. Jones refused to answer Al’s questions – echoing Mrs. Johnson’s hanging up on the Board – Anita comments that while this is not a court proceeding that a witness’ willingness to submit to cross-examination DOES influence how the Board assess the evidence they do provide.

Al questions Stroud on handling of yard waste – is there a particular process? There are guidelines and expectations but it doesn’t appear that the Town holds folks to a hard and fast rule.

Earlier Stroud commented that he took a camera out to Northside to document Clark’s problem cleaning up “white goods” (bikes, etc.). Al – Why did you do that? Stroud – I knew it would be a heated situation – wanted evidence to support his conclusions.

Al – Did you see the pictures Bigelow took of the debris problems on Greenwood? Stroud – No.

Pretty clear that taking photos was a common procedure for the PW department (CW: good idea, I used to do that regularly as a commercial construction inspector).

CAI’s von Der Lippe (VDL), dressed more casually this evening and seemingly more relaxed, on the stand for the Town. 14 years of experience – several investigations – “bunches” – over 100 – investigations have come out for and against employees.

Sneed probes VDL’s knowledge of CAI’s prior contract with Town – reaffirms he knew nothing prior to hearings. Sneed shows his bill – $5860 – acknowledges (as Al mentioned last week) that he is being paid $150/hr. to attend this evening.

Sneed – were you told these two were trouble-makers to start with, were you told to build a case to get them out? VDL – No.

VDL describes process he uses as a “true/false matrix” – that he investigates the allegations, looks at supporting evidence, corroborating testimony – to determine if allegations stand or not… Pause as he reviews a stack of statements – he was criticized by the Board last week for submitting a report with glaring problems – problems that change the meaning – which he explained away as typos (embarrassing typos to say the least).

VDL affirms the accuracy of the reports.

Sneed prompts VDL to explain why the two are lumped together… VDL – many of the incidents they participated together – investigation reveals that Clark was the more belligerent, aggressive, rude and confrontational of the pair – VDL – a theme throughout the investigation is that Clark was rude, indignant – Stroud said Clark was out of control…

VDL: Stroud was pretty emotional talking about Clark – especially how Stroud went to the mat for Clark when Clark was on the verge of being fired… Stroud “like working with nails” “it was their way or no way” – disappointed on inappropriate comments Clark made about termination of PW worker (Harv Howard?) which had made his co-workers upset…

Sneed – other than a few typos, is there anything in this report which substantively changes the sense of the report…

Al cross-examines – Could you explain what constitutes a typo? Considering that a typo discussed last week changed the sense of the report – Stroud’s comment on the radio/water request event…explain it further… VDL: Other than that no…

Al asks VDL how much he knows about CAI’s anti-union work…VDL: “I’m not the right person to ask about that…” “I don’t think I’m the right person to ask about that…”

Al’s team hands out a binder full of CAI’s anti-union work to the Board and von Der Lippe to review (CW: I posted on it here [Chapel Hill Council: Union Busters?]). It’s established that VDL’s employer is a wholly owned company of CAI and that, in turn, Bruce Clarke – CEO of CAI – no relation to Mr. Clark – was a leading figure nationally in fighting unionization.

VDL: “This isn’t what I do” “This isn’t something I know about…” He might get email notifications, etc. from CAI on these issues but he gets a ton of junk that he ignores as not being pertinent to his job…

Al – $50 Background check – VDL: What he does for any investigation of hostile employees – he runs a check to make sure his personal safety is assured…

Sneed – recrosses VDL – Did Bruce Clarke assist in investigation, write report, review report, comment on it, etc. ? VDL: No.

VDL is the licensed investigator for CAI’s investigation arm. CAI is a 50 year-old non-profit employee association and the investigation arm is a company charged with conducting that work…

Sneed asking VDL about interview with Clark – Did Clark cooperate, participate? No – Clark didn’t want to participate – he wanted other folks to attend – wasn’t interested in going forward VDL: Couldn’t get much information….

Al asks if Clark was given notice under due process of the charges – not really – VDL had been told Clark was “belligerent, aggressive, intimidating”, “rude to co-workers” but instead of asking about those alleged behaviors VDL asked specific questions on specific incidents…

Sneed recalls Mr. Norris, head of Public Works.

Norris – kind of neat that we visit every home in Chapel Hill once a week

Norris explains process of dealing with yard waste – trucks equipped with rakes and brooms so the crew can leave the area tidy – they don’t make a big deal if waste exceeds 3 cubic yards…

Sneed asks about pre-disciplinary hearing process. Sneed – Had Norris decided by Oct. 12th, the day of the hearing, what disciplinary action would be taken? Norris: No. Norris: Every time he tried to engage with Clark and McSurely to determine what the facts were, what substance there was, they refused.

Norris and Town attorney did offer to have the two come back once they were better informed but Clark refused (CW: this is a strong point of contention – Clark/Bigelow maintain they left these hearings expecting a detailed list of allegations and specific evidence supporting those allegations so that they could respond accordingly).

Sneed – “we believe in progressive” employment practices – why not suspension? why not move them? why immediate termination? Norris – As soon as an incident rises to “personal detrimental conduct” then he must move quickly to protect citizens… Norris manages 8 divisions, every one deals with the public, he can’t simply move an employee who has engaged in “detrimental personal conduct” (the mantra we hear over and over) into a position that is forward-facing with the public…

Al explores the “Biden event”. Spoke with two people directly – one within neighborhood and one at an outside location…

Al – What about third complaint? Norris – Complaint about poor performance, missed pickup – was concerned because customer said that the two workers behaved in a rude way

Town – no other witnesses.

Clark begins….

Born and raised in Chapel Hill. Lived in public housing over on Gomains. Came up through school district before and after desegregation. Mother worked at Granville. Father worked for UNC in mental wing. Got to know Mr. Fred Battle.

As he grew up he noticed Chapel Hill was changing for black men. Mr. Battle suggested he look for a job with the Town after he held a series of meaningless jobs prior – at Taco Bell, Marriott, etc. At 30 years old he got his first sold job with Public Works.

Clark says a lot of the write ups, including ones from Harv Howard, don’t tell the whole story – for instance, that there was ice on the ground early Spring and couldn’t clean up

Al – Why a union? Clark – “White men run this Town” “Terrell should be sitting there….” pointing over to Mr. Norris. He wanted to start a union to “lift men up” who were doing a dangerous, dirty job…

Al begins to show a series of photos documenting dangerous work conditions – like scrambling across multiple lanes of traffic on MLK, Jr.

Al asks about a pamphlet Clark distributed – Clark – did it because they wanted the public to know how the Town was treating them – that they were fired without being able to see evidence – that due process wasn’t followed in any way…

Clark “Richard Terrell and Dennis Schoch [HR] should be sitting over there…” He only dealt with these two managers – not Norris – Norris was not the point man on this as has been presented – until this hearing didn’t even know Sneed worked for Town…

Al highlights the vagueness of the allegations in the pre-disciplinary letter – Al – Did you have a chance to review the evidence, to talk to the people down on Greenwood – Clark: No.

Like Bigelow, Clark said that he expected when he left the meeting that there would be a follow-up meeting. McSurely and him were waiting on clarification and information they requested from Town when Clark received termination letter.

Clark – “Public works is running wild down there…” “White worker threatened to kill someone” – He’s back on his job, is he going to get fired?

Clark – Addressing interactions with woman on Greenwood – growing up in Chapel Hill he learned how to behave around older white women – that he wouldn’t initiate a conversation – that he would only respond to a query – he certainly wouldn’t behave as described…

Clark – On waving hands and aggressive behavior – “If I did that I wouldn’t be here I’d have been arrested…”

Clark says he didn’t recognize voices on phone – not sure who they were…

Al walks through a small list of specific allegations – did Clark call a co-worker saying he was talking too much about his [Clark's] business – did Clark act belligerent on Greenwood – no, no.

Clark admits was counseled about his problems with attendance. Said he responded to problem brought up 4 years ago, been better since. Points out the PW/Solid Works have lots of people with under time problems…

Sneed – crosses – Did Mr. Marsh lie when he said Clark called and complained about Marsh being up in his business – yes… Are white men running PW putting citizens up to complaining? – no… Was it a lie when VDL said you refused to be interviewed? Clark – been so long ago, I don’t remember it it was so long time ago…

During this back and forth Clark keeps saying “this isn’t a court”, “I don’t know these witnesses” “that is what you say” (to Sneed) – asks where all the concern and energy was from HR/PW when dealing with health care issues, other personnel issues…

Clark, like Bigelow, characterizes the Town’s case as: lies, lies, lies.

I find this protestation to be the weakest part of both defenses.

Jim Ward showed up sometime in the last hour. It will be interesting to see if Council thinks they have appropriate oversight over the Town Manager’s management activities after these cases are discharged. From public reports, it doesn’t appear they discussed it during the recent Council retreat.

Board (BM) steps up to asks witnesses further questions.

Larry Stroud, the second tier manager of Clark/Bigelow up first.

BM: How are teams put together? Stroud – Teams are set. When someone leaves the next person in line steps up. Appears Bigelow/Clark were paired due to some incident which moved their partners on…

BM: Heard last week issues about taking pictures…has any other crew had complaints about taking pictures?

BM: Told last week that someone called you on the radio, do you remember that? BM: Did you recognize the voice? Stroud – It was Kerry. Stroud – Do you want more detail? Explains how trucks are equipped with water.

Other BM: Did you see Kerry take photos? Stroud hadn’t but had seen photos – included trucks, private property…

Other BM: Asks about written documentation – Stroud said that written record maintained by his superintendent – should be in his files (supposedly Harv’s?)

Delores Bailey – asks about truck #210 incident – citizen complaining that guys weren’t doing job appropriately – superintendent asked Stroud to go investigate – it was Northside incident – Stroud took photos expecting a heated incident and need of evidence – took pics to superintendent – superintendent talked to Clark – didn’t work out and Clark moved from truck #210 to #209.

DB goes into the Northside incident more deeply – turns out small appliances are tossed into truck but there is a 3 small appliance limit which isn’t generally observed – larger appliances are picked up by another crew…

DB how did Kerry get on #209? Kerry wasn’t moved there as a punishment? Stroud – No. DB – Any problems with Kerry and his partner? Stroud – maybe one small one…

DB Given all the problems you describe – 2004 to now – you think he wasn’t let go because of his relationship to Mr. Battle? “I’m not saying that…” (CW: but he is saying that…).

DB asks if Stroud feels intimidated by Clark – Stroud – Yes – DB How long have you been a supervisor – Stroud – 11 years …

DB asks if Stroud saw any improvement in Clark over the years – Stroud says he did after counseling Clark but after a couple weeks Clark would be back to bad behaviors…

DB asks if Stroud thought Clark would get up in a residents face – Stroud says absolutely – no doubt…

Anita Badrock – asks Stroud about staff meeting – Clark stood up and said former superintendent wasn’t going to be the last to go – Clark said Stroud would be gone by December – AB – testimony says “Clark stood up and said former superintendent would be next to go” – what was that meeting about? Stroud says Harv’s meetings were generally about state of Town…

At this point it’s suggested Norris a better person to ask about meeting as it involves discussion about another personnel matter (Harv’s dismissal?).

AB asks how many complaints Stroud gets from folks about sanitation workers – Stroud – every day – lots of them – AB asks if people ever call with compliments – Stroud – yes – AB, this particular truck? Stroud – ummmmm…

AB asks Stroud about stress of dealing with this mess – he testified last week that he thought about early retirement because of the stress – Stroud – yes, I thought about it — he talked to people outside of Town to help deal with pressure – didn’t seek help from his management

Stroud discusses how hurt he felt about Clark’s behavior – he kept reaching out trying to help him – he gave him rides – he counseled him – thought they were on friendly terms but Clark would turn on him…

DB asks, again, how long he had been a manager Stroud – 11 years – DB – formal training? Stroud – yes DB – why didn’t you write him up? Stroud – did but stopped doing it… DB – Stopped writing up incidents, why? Stroud – told by superintendent to stop writing them up a year ago – DB – Why was that? Stroud – not sure…

DB – Of all the incidents involving Clark over the years, why this event? Stroud – When it involves citizens like this it was time to do something finally….

Board calls CAI’s von Der Lippe (VDL).

BM asks how many employees at CAI. VDL: 45. BM: In investigations department? VDL: 3

DB: When you started this investigation you were being asked to establish negative nature of conditions? VDL: No, his process is to evaluate particular complaints and establish veracity – he looks for facts in support of complaint – true or false allegation – not trying to build a case that his already been established….

DB: What about “flailing of arms”? VDL: More than one person verified that…

BM: In the case where there are only two witnesses and they both offered distinctly different testimony, how would you handle this in your report? VDL: I would report it was unsubstantiated, unverified.

VDL: When you have an incident where people are arguing so loud that someone on another block drives over to see what was happening, that substantiates a citizen’s complaint.

DB: How is that possible? Aren’t the trucks loud? DB says this part of the report was hard to understand – how could someone hear an argument a block away given how loud a garbage truck is – VDL: Explains that other employee who overheard argument was in a pickup truck doing special collections in the area – VDL found it a reasonable scenario…

DB asks about Rodney Courteland diary. VDL relates that Rodney is a co-worker who was keeping a diary of Clark/Bigelow’s time (!!!) and had turned it over to the Town. Rodney kept the diary partially because he was intimidated by Bigelow taking pictures of him doing his job and felt he needed to document their behavior…

Norris up.

BM asks Norris how many grievances he was aware of being filed over last decade – Norris aware of maybe 15 – possibly some by the same workers – BM/Norris establish that Clark/Bigelow were the only two Norris was aware of who were fired (CW: trying to establish the likelihood of the retaliation scenario I presume).

BM asks why it took 50 days to follow up on the “Biden event” complaint. Norris points out Terrell was new to job, that former superintendent of waste management was no longer there…

BM if this was a “serious incident”, as stated, wouldn’t there be a sense of urgency? Norris – initially it was an allegation, took awhile to establish facts, verify incident particulars – at that point “Biden event” moved to level of “serious incident” and the pace quickened…

BM: If you had this information, what is the intent behind scheduling a pre-disciplinary meeting? Norris: The only reason for the meeting was to gather information – to get the two workers side of the story…the meeting was just like this hearing – an attempt to get at the facts – Norris said the two decided not to engage and that he had to move forward without any additional employee input…

Norris decided that the “serious incident” amounted to “detrimental personal conduct” based on corroborated evidence presented in CAI report. He considered other options but couldn’t find a position for workers that wouldn’t expose the Town to liability – given that the only option was termination…

BM: Did you know Mr. Stroud was told not to write up these incidents? Norris – no I discovered it only through this process – turns out incident reports were, at least as Stroud and the Town claims, being stopped at Harv Howard’s level…

DB: If these reports had been submitted do you think they would have a chance to change their behavior? Norris – very speculative – possibly…

DB to Norris, do you think two days was enough time to respond to these charges? Norris offered to go through this information then and there – after that schedule an additional meeting – Clark and Bigelow refused to review information and so he was forced to move forward…

DB asks how linked these two are – Norris agrees that incident reports say “they” but that he considered them as two different cases…

DB: Are we terminating them as a couple? Norris: Treated individually, terminated individually for a joint behavior (the Biden event on 7/22).

Delores Bailey continues to probe Norris on how much of a role the two workers leaving the pre-disciplinary hearing without reviewing the information the Town had accumulated played in their dismissal – asks if the two had a chance to re-engage – not quite clear if the opportunity existed though Norris did give himself 48 hours to think about next steps…

At this point it is clear that leaving the pre-disciplinary hearing pretty much sealed the fate of the two workers. As I said last week, the two’s jobs could very well hang more on whether the Board thinks adequate “due process” was afforded rather than the substance of the allegations.

Now Anita Badrock, Chair of the Board, starts asking about the pre-disciplinary process.

AB – How is an employee supposed to bring information to this meeting? (CW: Both parties agree that the pre-disciplinary letter sent to the workers was vague on specifics). AB – The investigator had two weeks to gather this information….how is an employee supposed to respond “on the spot” to the allegations – why isn’t there a process for giving an employee an opportunity to further research the allegations and respond accordingly…

Norris continues to say that the pre-disciplinary meeting is for “providing the information”, that providing written materials ahead of time was not part of the process and “if only” the two workers had engaged he could’ve of POSSIBLY scheduled a followup.

AB explores the difficulty workers must have in responding to allegations and evidence presented “on the spot”.

AB asks why Norris didn’t use the CAI report to corroborate the information he independently verified. Wow!!! Norris couldn’t see the report due to attorney-client privilege?

AB: Attorney-client privilege? Who was the attorney? Norris: The Town attorney.

Norris says Town Attorney verbally confirmed aspects of the case Norris had developed with the help of CAI’s VDL and internal research.

Now DB takes up the questioning. Norris agrees that two workers and counsel had asked to get information and comeback. He continues to say that he offered to go through information and then let them comeback.

DB: Why wasn’t it fair to give the workers the information and let them come back? Norris – that wasn’t the process…

DB turns back to turmoil caused by Harv Howard’s leaving. Norris had told 140+ workers that he wanted to move forward as normal – DB: Couldn’t feelings been running high? Norris: It was a large organization and it was important to control rumors..

Earlier Norris mentioned how disruptive it was to have a worker claiming that “the superintendent wasn’t the last to leave”…he outlined how not diffusing such talk early could lead to further intimidation – that he couldn’t let his department think that some workers had the power to force people out…

AB asks why workers weren’t disciplined under established policy on discourteous behavior towards residents. Norris – this was beyond discourteous – belligerent inappropriate interactions.

DB brings up Clark’s feelings of intimidation. Clark alleges that because he filed a safety grievance Harv Howard and the rest of the crew came down on him. Norris felt that the issue had been resolved satisfactorily.

Now Board turns to Clark.

BM question to McSurely about expectations of what would happen after pre-disciplinary hearing. Al – We expected what the law requires – a specific list of allegations – the letter the workers received was very general. We had no idea what the charges are – no good lawyer would go in and try to defend their client with no specific charges…

Sneed, Town lawyer – in listening to discussion about pre-disciplinary hearing struck by how the Town followed the letter of the policy – if Al didn’t agree with policy, thought it wasn’t following State law – that’s a different problem…

BM interjects – to Al – you should have set a date in that meeting, you shouldn’t have left the meeting without a date…

BM (Derek) – Explores Sneed’s timeline – points out that documents came in about 3-4 days prior to termination – asks Al if further action taken – Al says they started a review but within a short time the two were terminated…

Sneed explains that there was no meeting of minds, no agreement to continue the process.

DB back to Clark asks about reported loud argument. Clark can’t respond to allegation “because it is made up work” “sensationalized” . Points out the Town employee on the pickup who corroborated the story – who heard the argument from down the block – wears hearing aids in both ears – no way he could’ve of heard an argument if one had ever happened – but no such thing happened…

Clark responding to Northside incident – lived in the neighborhood – how come Town can’t find one person from Northside to buttress complaint?

Clark -Stroud is a lousy manager – nothing personal – the department for years was run by Harv Howard – Stroud was a figurehead…

Clark on Davis Circle not being picked up for a month – they were told not to pick it up unless the bins were pulled to the curb – “do you think a man with 26 years would allow us to miss…for over a month?” Instructed by Terrell, et. al. to skip that part of route.

Closing arguments.

Sneed – it is understandable why Al McSurely said this was a complicated case given all the unsubstantiated innuendo, conspiracy theories, rumors, etc. but when you pull away all that it becomes a clear case…Clark was close to being fired before, Town counseled him and he held on to his job…how did he repay the Town, management, his coworkers? He was insubordinate, belligerent,…

“Intimidating, threatening conduct..” “Detrimental conduct”

Even though this is Clark’s case, she continues on about Bigelow and Clark…

Town followed their procedure…offered an opportunity for workers to respond during pre-disciplinary process…they rejected that reasonable and required offer…Mr. Norris was left with only one course of action…he took it…

Al McSurely, counsel for Clark, starts…

Outlines Clark family history – parents formed unions on Campus…

Goes into initial retaliation over series of 14 OSHA complaints – including backing up in blind alleys – said Harv Howard called a 7am meeting early March and told crew that Clark/Bigelow was “messing things up” and that they would end up “working 10 hour days” (CW: recall the Town allocates 40 hours for the job but lets the crew get the job done at their own pace – sometimes in little as 4 hours)…Stroud was at that meeting…

First heard of a series complaints…based on unsworn testimony of CAI’s VDL and Town documents that series of complaints has boiled down to 2 complaints by 2 woman living across from each other…the same 2 woman we heard from this evening Al thinks…if the behavior was as bad as described then it constituted criminal conduct – assault – but it wasn’t handled as such…tonight both women agreed they didn’t want the men fired, they didn’t mention intimidating physical behavior, Al would like to talk them about it…

…this wasn’t about the citizen complaints, it was only after the filing of Bigelow’s EEOC complaint that events started moving forward…this was about their union activities…the union was very vital during this time…no doubt that bothered people, made people anxious…worried Stroud…some evidence of that is the Town banned both men from Town property, prohibited them from conducting union efforts…

…Al hasn’t filed a grievance where the other side is happy about it…surely management was worried what would happen if a union was formed … Town would have to start treating their workers as humans…

…this is a matter of due process…

Al ends and so does the meeting.

Was there clarity? No. Are some issues more understandable? Yes.

Both the Town and Mr. Bigelow agree that he was a solid worker with a “good attitude”. Both agree that something changed when Mr. Bigelow filed an EEOC complaint when he was passed over for a drivers job, a job his supervisor Larry Stroud said he was well suited for, a job that went to a less qualified candidate.

While the Town and the Appeals Board skirted the issue numerous times, it is also clear that the Town agreed Bigelow’s initial review process for that job wasn’t handled appropriately, that the deficiency in that review rose to the status of a “serious incident” and, apparently, led to the dismissal of a public works manager.

From that point on both sides construct a completely different, but strangely congruent, narrative of Bigelow’s employment.

The Town claims Bigelows behavior, as reported by 10 fellow employees and documented by 7 resident complaints filed by 5 citizens of Chapel Hill, disintegrated. The formerly solid worker now was conducting himself in a detrimental way – a way requiring immediate dismissal. No warnings. No counseling. No management intervention.

The Town crafted a story of a prudent investigation by an outside consultant who clearly documented a series of “serious incidents” from a belligerent, aggressive, combative (and, as the CAI private investigator saw it), dangerous employee.

Bigelow and his lawyer Al McSurely claim that the Town’s first documented “serious incident” was Bigelow’s EEOC (Equal Employment Opportunity Commission) complaint. They sketched out a time-line and a series of Town management maneuvers that deprived Bigelow of due process and led to his retaliatory firing. As Bigelow concluded this evening “they were out to get me..well, they got me”.

The Personnel Appeals Board, led by chair Anita Badrock, did a good job of trying to tease out the truth – what truth, at least, that could be discerned from the anemic Town documentation and contradictory statements made by all the participants, including Mr. Bigelow. Kudos to Anita for her deft handling of tonight’s process.

Kudos, also, to the citizens who turned out. Folks were patient, generally quiet and many held on the full 5+ hours to hear both sides out.

While Mr. Bigelow and Counsel McSurely did a good job laying out a narrative, Bigelow did contradict himself several times, especially when it came to his understanding of the consequences of leaving the pre-disciplinary hearing. It could well be that the 10 employees who verified Bigelow’s discipline problems had their own axes to grind – possibly been cherry picked to deliver a particular slant on his service. It could well be that the frightened citizen was exaggerating or even antagonistic towards Bigelow for some unspecified reason. Simply saying that it was all lies without clearly communicating a factual counter-narrative did not help Bigelow.

The outcome of his case could well hinge on whether the Board believes that Bigelow was afforded due process moreso than if the Town’s case has merit.

Which, finally, leads us to whether the Town’s case was solid.

Given what I have heard from dozens of staff members over the last decade, I could believe a narrative where Town Management actively made life difficult for employees who file EEOC complaints, who ask tough questions.

Yes, hiring CAI, a company with a well-established anti-union stance to manage an investigation of two union organizers for unrelated issues was boneheaded. Yes, there could be more to CAI’s involvement than being the most convenient option, as the interim HR director suggested this evening.

Did Bigelow make that case this evening? No.

It was clear the CAI’s von Der Lippe was hired to do a particular job. That job was not properly done – mistakes in the final report, undocumented investigative questions (possibly leading questions), inadequate interview notes/recordings, confusion as to the Town’s management structure, etc.

Was this because von Der Lippe had some kind of union-busting agenda, as some have suggested? No.

Simply, he was given a particular charter, provided provocative hearsay evidence and pointed directly in Bigelow/Clark’s direction. Based on what he said he was told by Clark and Bigelow’s fellow employees, by management and citizens, you could almost – almost – understand why he ran a background check on them for fear of his own safety. That fear, though, betrays an unfortunate bias which, as far as I can tell by the testimony this evening, undermines the Town’s case.

Finally, the Town failed to provide specific details of the allegations.

We heard of an initial incident – unsubstantiated by any uninterested party – involving what sounds to me as an innocuous comment supposedly made 7/22 on the eve of VP Biden’s visit to the Greenwood neighborhood. We heard of a second incident in September which severely frightened a resident – to the extent that she cowered behind closed blinds until the trash truck left the neighborhood.

On cross-examination, Director Norris alluded to a series of escalations between the two dates, yet it still remains unclear and unsubstantiated what those escalations were. What was clear is that there were a series of missed opportunities to resolve these issues. Miscommunication, especially during the disciplinary process, played a major role in the mess before us.

North Carolina is a right-to-work State, which, essentially means that employers are free to fire folks for any damn reason they want (except gender, race, creed and politics). And while I certainly don’t want an employee who exercises “detrimental personal conduct” resulting in “serious incidents” working for the Town, based on Chapel Hill’s stated principles, the Town is required to do a better job than they did this evening in proving the allegations.

I’m going to sleep on tonight’s evidentiary hearing. Maybe the facts, what few there are, will hang together better in the morning.

Folks are trickling in – as of 6:40pm there are still plenty of seats.

I’m here this evening to see, after all these months of back and forth, the evidence the Town will present to justify the firing of Kerry Bigelow.

To date, the Town has said, justly, that they cannot reveal the details or specifics of the allegations in order to provide due process for the workers. On the other side, the workers have claimed retaliation for filing grievances, racism and a pattern of general disregard. They and their supporters claim the Town has persecuted them through a series of dirty tricks and deceptions.

I follow local events fairly closely and, as of this evening, I’m still unclear as to the factual basis for either sides claims. I do know, though, some of the folks making the claims and they’ve always been trustworthy.

A couple weeks ago, the “Sanitation 2″‘s supporters made their final appearance before Council ( Purest Form of Democracy: Raging Grannies to the Fore ) to plead their case (background here (Clark-Bigelow Out).

I made the following comments then:

I’ve been asked numerous times where I think the truth of the matter lies by folks who know I try to keep up with what is going on in Town and will call it as I see it. Simple answer? I don’t know. Lots of questions. Many raised over and over by the two’s supporters. I’m certainly sympathetic to Mr. Clyde and Bigelow’s situation – it is a very tough economy and getting a new job with a cloud hanging over their heads will be difficult to say the least.

I definitely think the Town made a boneheaded mistake in hiring CAI, a firm known for its anti-union bias.

From what has been reported, the case against the two workers seems tenuous and more deserving of management intervention than dismissal. Their reported grievances, unfortunately, are nothing new to me. Over the last decade, I’ve spoken to several dozen employees throughout our Town who have claimed similar malfeasance, discrimination, abuse and impropriety.
….
At that point, I expect the Town to lay its case out fully – with great specificity. I expect the Town to establish why normal management procedures failed, as they seemed to have (and, afterwards, explain how that failure is being remedied) and explain clearly why the workers were fired. I would hope that the Town also explains what yardstick they judged the two’s actions against. Is it true, as has been claimed by some of the workers’ supporters, that other employees with far more serious infractions (even criminality) haven’t been dismissed?

As I said then, some of the claims are, unfortunately, old news ( Council Oblivious: How Long Must This Go On? June, 2008).

7pm. Anita Badrock, Personnel Appeals chair, stands to address what is now a full house.

Anita highlights that the Personnel Appeals Board has a 35 year history. She points out that a lot of material has been submitted by both sides and that the Board itself requested additional information. They have reviewed the submitted information, will take further testimony this evening from both parties, question the parties for clarification and then resign to evaluate the evidence in private.

Anita points out that the Board can only make a recommendation and that the end result still lies within the Town Manager’s purview.

She follows by asking the public to respectfully observe but not interact. Along those lines, she said that some of the Board members objected to the signs be displayed – she asks that the signs be removed.

Town Attorney Ralph Karpinos is here to advise the Personnel Appeal Board (CW:interesting considering the role he played leading up to this event).

Delores Bailey, Board member, asks for the letter sent to the Town by Mr. Bigelow alleging grievances, the letter he submitted in protest, previous personnel ratings for Mr. Bigelow and personnel records of the termination process. Copies are given to the Board and Bigelow’s counsel.

Anita says Town goes first but Al McSurely, counsel for Mr. Bigelow, starts. Both sides have been allocated 1 hour 15 minutes for each of their presentations/questions/cross-examinations.

Al – “This is a case of retaliation…expect a ‘kitchen sink’” approach to the Town’s case this evening. It was only after the filing of Bigelow’s grievance that the Town began to accumulate evidence to support firing the two. Al points out that the Town Attorney, who is advising the Appeals Board, worked with CAI’s private investigator. Al also highlights that CAI submitted their formal report to the Town Attorney one day after the firings – which seems to indicate a foregone case. It appears, as he holds up a few new documents, that the Town continues not to provide all the information requested.

Lance Norris, head of Public Works.

Town lawyer Snead asks “Why are we here tonight? Is this a case of retaliation?” Lance – No. In July we received a number of complaints from the public about the two workers. The workers were reportedly acting hostile towards citizens. By September Public Works management had accumulated a raft of emails documenting the workers antagonistic behavior. One complaint involved a neighborhood which was hosting VP Biden visit. The workers “frightened” one of the residents in making a comment about that visit.

Lance – by September it was clear that this pattern of complaints had risen to the point of being classified “a serious incident” – contacted HR who concurred. The Town started the process of putting the workers on administrative leave. Lance is asked “Were you aware that the workers had filed (EEOC?) grievances?” Lance – No.

Only after the process was started did the two investigations converge – one, the serious incidents associated with the workers, and, two, the investigation into Mr. Bigelow’s allegation from Feb. 16th that he was passed over for a position he was qualified for due to racism.

Lance asked – did you interview the residents who complained. He spoke with 3 citizens. He attempted to contact others but couldn’t do so. He, and the CAI investigator, tried to talk to a woman who complained but her husband said she felt she had already done he duty in making the complaints, that she felt intimidated and that she was done with the process (CW: interestingly, there is little detail on the substance of the complaints, the specifics of the email, the reasons the woman felt intimidated, etc.).

Town asks for a recess as they contact a witness via phone to testify.

Town has contacted “Ms. Johnson” (anonymous). She is going to read a statement via phone.

She starts “I called the Town last Spring….” Quick paraphrase…. their trash wasn’t being picked up, debris piles were being strewn after the trash pickup and she had to clean the street afterwards…never had any problems before…she asked the workers to please clean up after themselves…she felt they were being rude and dismissive…the last time she dealt with them she was intimidated…she called the Town not to get the two fired….she just wanted the kind of crew she used to have…to have the Town replace Clark/Bigelow…she hasn’t had any troubles with the new crew…since the suspension she has had little interaction with the new crew but what little she has had has been pleasant….”it is astonishing that this issue has ballooned into a race issue”…this is a simple issue of not getting the work done, that the workers providing this service were being rude, hostile….”this case is not about race…” this is a case of poor performance…she just didn’t want to be intimidated anymore in asking for a reasonable service….

She comments she is appearing via phone this evening because of all the hoopla surrounding the incident.

When Al McSurely tries to question her she says “I’ve said my piece”…the Chair asks if she wants to terminate her testimony…she says yes…and that’s it….Al McSurely notes his objection (this isn’t a court but Anita did say witnesses could be cross-examined…).

Next witness, James Jones, 27 veteran of Town department. Had a problem with Mr. Bigelow. There was an incident when Bigelow held up the truck…there was a meeting to stop collecting tin/aluminum cans which was causing the delays…at a meeting held by management to correct this behavior Bigelow stood up and complained about not being able to pickup cans…Jones said Bigelow said he refused not to pickup cans (CW: not sure what kind of cans they are referring to… There was another series of incidents where Mr. Bigelow and others started taking pictures of brush piles and debris along the road and on private property…

Town asks Mr. Jones if he had his picture taken? “No”. Was Jones aware of Mr. Stroud’s complaint about Mr. Bigelow taking pictures? “No”.

What is the process if there are safety complaints?…”We have a [safety officer]” who deals with that…What about an incident involving water? Jones – one day Mr. Bigelow complained there was no water on the truck…there was water but it wasn’t cold…Jones said Bigelow called Larry Stroud (his supervisor) on the radio and complained about the water missing…insisted Stroud come out with new water…

Town: Was that Mr. Stroud’s responsibility? Jones – “No”…Jones elaborates…no formal procedure…left up to individual crews…. Town: Who heard the radio call? Jones: Everyone with a radio…. (CW: It appears the allegation is Bigelow made a rude, insubordinate call on the radio heard by all the crews working).

Town: Asks about pictures being taken…was anyone upset? Jones: One incident when Bigelow was walking around erratically taking pictures of a brush pile on someones property…woman came out and appeared distressed…didn’t seem to want the two recording the debris pile…

Town asks: Mr. Jones, is there any difference in Public Works since the two left? Bigelow’s lawyer Al McSurely: Objection. Anita Badrock: This is not a court, please answer. Jones: Much more relaxed since the two are gone…

Cross-examination by Al McSurely.

Al – “Mr. Jones you pick up my garbage…you do a good job…” Jones: Thanks…

Al – Since the two have been dismissed has anyone taken pictures of you stopping in the middle of MLK, Jr. to pickup trash? Jones: No ones taking pictures…not aware of pictures being taken… Al holds up photos Bigelow took of the truck stopped in the turning lane of MLK, Jr.

Al – “Is that you driving your truck?” Jones – “Not sure…” Someone gasps, says “huh…” Al shows a series of pictures…the truck clearly stopped where the two workers had to cross the 5 lanes of traffic…questions the safety….(CW:the truck driver acts as the supervisor for the two workers on the back – de facto management – he determines where to stop and is responsible for the safety of the crew).

Al – Do you think it is safe for the workers to scramble across the busy street? Jones: Not sure what your question is… During all of this Al’s assistant cycles through a series of pictures showing how dangerous the situation was… These pictures were taken by the two dismissed workers

Al is impugning the previous testimony by building a case that Jones actions amounted to a “serious incident”….Jones: Not aware of safety complaints…. Al: Did anyone ever come up and tell you that stopping in the middle of the road to save 5-10 minutes is dangerous? Al: No one in the chain of command mentioned that these pictures were evidence in the safety grievance proceedings Bigelow/Clark started in March? Jones – “No”.

Al asks if he knew if Harv Howard had intervened (CW: Harv’s case with the ESC was also overturned like Bigelow/Clark’s).

Al asks if he was aware of why Harv Howard, previous head of PW solid waste, was fired? Anita shuts down discussion on that issue as it wasn’t presented in public.

Al asks about the testimony that Bigelow was belligerent during the meeting about collecting cans.

Al – You said “he was ‘going off’”…Did you feel threatened? Jones – I misspoke – Bigelow was “upset”. Al – “Did you feel in personal danger?” Jones – “No.”

Al goes on to describe part of Bigelow’s route down through Greenwood Drive…sketches out the nature of that neighborhood – “that’s where lots of rich people live”…”lots of expensive homes”…”do you know how expensive those homes are”? Jones – not really. Al – did you ever see Bigelow act belligerent or threatening to neighbors in Greenwood? – more specifically – did Bigelow ever get in any ones face on Greenwood? Jones – I never saw anything….

Al – “Were you aware that Mr. Bigelow is a Reverand?” Jones – I heard that – couldn’t confirm one way or another…

Town re-crosses Jones. Did he think Bigelow getting on the radio demanding water was inappropriate? Jones: Yes, very.

Al – re-re-crosses – Did the radio issue (about water) come up prior to the interview by CAI’s investigator? Jones seems to fumble claiming he doesn’t recall dates but essentially agrees that several issues did not come up prior to the case being investigated by CAI, the Town’s consultants, concurrent with the firing.

That part of the testimony is done with. The Board calls a recess to try to straighten out a sound problem.

Talked with Anita for a moment – commented that this hearing will probably go down in the annals of local history… She’s been doing a good job moving the proceedings along – giving both sides opportunities to expand on their cases.

So far I’m struck by how little specific detail is being offered as part of the oral testimony. It appears, at least based on the piles of materials before the Board and each sides counsel, that this detail is documented to some extent (they should release it as part of the process). Recall, though, that Al McSurely started tonight by holding up additional written records that he and Mr. Bigelow had requested from the Town but had never been provided.

Town has 43 minutes left to present, Bigelow 53 minutes.

CAI’s Kevin von der Lippe (VDL) – private investigator is the next Town witness. Has 14 years experience. Has done 100′s of investigations for NC municipalities, counties, etc. He was contacted in September by Town Attorney Ralph Karpinos to investigate “serious incident” . Cost $5860.

Town – What process did you use? VDL: Start with credibility of complaints. Interviewed witnesses to verify allegations. “If one person says something, and another…” that builds credibility. Town: Do you look for hidden motives? VDL: Sure.

Sandy Trail investigation – Citizen was very frightened – during interview she said “Was so afraid of trash collectors that she looked through her blinds to make sure truck had left the neighborhood” – went with Lance Norris to interview her directly – first had to calm her as she was extremely frightened, she felt a lot of anger, associated it with the Town in general…

VDL: the whole conversation was very troubling
VDL: Second citizen confronted trash collectors – the response from him – collectors were dismissive and aggressive – he felt that the employees were disgruntled and rude as a consequence…

Town: Explain testimony from town employees. Danny Kirkland sworn statement – co-worker and recipient of harassment from Bigelow – VDL confirms sworn testimony….

Before next affidavit is presented Al interjects….

Al – says “I know this isn’t a court” but it would be better to get direct testimony, “I know both of these employees”, why aren’t they here so we can hear their own words”…instead of having CAI’s VDL paraphrase the testimony… Town: We tried to get Public Works employees to come down to testify but they were too terrified to attend…..

Two additional employee affidavits are offered.

One claims that Bigelow and employee almost came to blows behind truck…. Another testified about meeting between Stroud/Bigelow where there was an argument about who would drive the truck during Mr. Jones temporary absence (CW: presumably Bigelow, who was a qualified driver for Burlington, who applied for a driver’s position with the Town, wanted to do it as a precursor to getting a permanent position).

VDL continues about Stroud testimony. Stroud said he was stressed out by the whole mess… It has affected his health…

Town: Did you consult with anyone at CAI about your findings? VDL: No.
Town: Did you consult with anyone at Town about your findings? VDL: No.

Al – Probing VDL’s bias against Unions. VDL: While he works for CAI he hasn’t done anything on the anti-union side – in fact he has worked on behalf of Union’s – done investigations for them… VDL points out that CAI has a big staff of folks that deal with anti-union work but that he is an independent contractor – runs/manages his own business – and that he was hired to investigate specific allegations of misconduct rising to “serious incident” status…

Al probes VDL on the Biden visit incident…

Al – don’t you find it unusual that a citizen waited until September to complain about an incident in July? VDL fumbles a bit. Al – Were you aware that Richard Terrell (Lance Norris’ second in command at Public Works) had gone down to check on the crew’s work and had found the job well-done. VDL: I don’t recall that specifically. Al – Do you know who Terrell is? VDL: Ummm….you would have to ask Mr. Norris (indicates Norris who sits beside him). Al – You don’t know Terrell? VDL: Ummmm… Al – You know that Terrell is in the chain of the command? That he did the right thing in checking on the work? That he found the work had been done perfectly? VDL: No.

Al continues investigating VDL’s understanding of the incident. It appears that the “confrontation” that day amounted to a woman overhearing a comment between Bigelow/Clark suggesting Biden visit “regular folks”.

VDL doesn’t appear to have explored the management treatment of other complaints on Greenwood in any detail – in fact didn’t discuss with Richard Terrell who filed report on “inappropriate remarks” – VDL also acknowledged that while Mr. Jones had confided to VDL other “confrontations” on Greenwood, that Jones, this evening, said that there had not been any he had seen (CW: I wonder how detailed VDL’s report is on those confrontations and if they rely exclusively on Mr. Jones prior testimony – testimony which Mr. Jones did not offer this evening).

Al asks about interview VDL conducted with Bigelow. VDL – Bigelow was “loud”, “aggressive”, “combative” – the interview was a fairly one-sided affair – Bigelow said he wasn’t aware about the specific incidents VDL was trying to interview him about….

Overall von der Lippe came across as a guy who had a specific job – to explore a series of specific incidents – and stuck to it. While he fumbled a number of times, he came across as a reasonable witness with no particular axe to grind (even if he was being paid by the Town). Notably, he wouldn’t comment on the management issues Al highlighted – seemed most distressed by being asked to describe or explicate the apparent management deficiencies outlined.

Town call’s Norris back – explores the 7/22 (Vice-President Biden) visit incident.

Norris – this was a serious violation, in all his time with the Town he hadn’t seen such conduct, the “egregious” nature of the alleged conduct, the extent of the conduct, the inability of the worker to correct their actions meant that he had to let him go…

Norris on safety grievances – “being a trash collector is hazardous by its nature” – took complaint seriously – offered to meet immediately but Bigelow asked for a delay – Norris had safety inspector run the route to see if corrective actions could be taken….

Town: Bigelow alleges grievances were ignored. Norris – we responded and dealt with grievances – “concerned about safety” – made some small alterations of route to address some of the concerns – untrue that Town didn’t respond….

Town: Bigelow had very good record but then his review ratings dropped – how do you explain that?

Norris – Mr. Bigelow applied for the position but was rejected due to some other reason an impropriety in the evaluation process which constituted a “serious incident” – HR fixed that issue (apparently fired the supervisor) and re-evaluated Mr. Bigelow. He still didn’t get the job – it was at that point the Norris and other management noticed a sharp decline in Bigelow’s performance and attitude – culminating in radio incident (water on truck) and then a string of other complaints…

Al asks Norris about the 5 grievances filed and whether they were eventually corrected – Al notes that Mr. Jones testified no one ever spoke to him about stopping in the middle of MLK, Jr. – Al asks Norris if the trucks still stop in the middle of MLK, Jr. – Norris: doesn’t know, knows some alteration were made, unsure if trucks are still stopping (CW: I live off of MLK, Jr. – yes – they still stop in the middle lane – quite scary to watch the guys scramble across with loaded trash cans).

Al asks a series of questions to determine if Norris knew if Jones was upset about grievances faulting his operation of the truck, etc. – Norris – unaware….

Town: Why immediate dismissal? Norris – conduct amounted to “detrimental personnel conduct” – detrimental personnel conduct can justify immediate firing sans any management attempts to discipline or counsel the worker – in other words – some conduct is so “egregious” (as Norris noted earlier) that a worker has to be fired

Al – probes the complaint made by “Ms. Johnson” and the second woman.

As to the second woman – Why was she upset? She testified she wouldn’t come outside so what personnel interaction did she have? Al – “did they throw rocks at her window?” Norris – she was out in the yard and spoke with workers – Bigelow/Clark said something to the effect of “Who would pay $500 to eat with Biden?” She heard them say “Biden wasn’t interested in the common man”. That was the genesis of the escalating fear – Norris mentions a series of further incidents but declines to go into specifics.

Al points out that these two of the three citizen complaints were made by women. That “Ms. Johnson”, who offered oral testimony this evening via phone used the same exact phrases “common man”, for instance, as the “other woman” – Al – “hmmm, that’s interesting” – to Norris – “what do you think?” (CW: So, is it the case that two of the three citizens complaining about these workers are the same person? )

Another break.

9:30pm – the Board reconvenes – as one local reporter notes – “in the home stretch”….which is off by 2 ½ hours!

Anita starts by explaining the dual role of Town Attorney Karpinos in the process. She clarifies for the gathered crowd (a little smaller – roughly 75 down from about 90) – that Ralph K’s role is to only provide information on relevant ordinances and procedures – he plays no role in deciding the outcome and the Board will seek no other advice in performing their duties…

Al starts asking Mr. Bigelow about his history with the Town. Al points out that Mr. Bigelow wanted to be a driver but that he was offered by Greg Jarvies (former Police Chief, HR director) a collections job at a very good rate for that position ($30K).

Bigelow steps through the chain of command – Jones – Stroud – Harv Howard. Al has Bigelow review his application to drive a truck – notes that Stroud recommended Bigelow for the position saying Kerry was qualified and a worker “with a good attitude”. Moving on, Kerry reads from his work diary the timeline of incidents – failing to get the job – filing an EEOC grievance President’s Day 2010, filing another grievance one month later…

Bigelow describes the day his driver and crew leader Jones noticed him taking pictures of unsafe driving habits and procedures – said Jones noticed the flash of the camera – pulled away to avoid Bigelow’s attempt to document the safety violation (Al’s assistant holds up a series of photos showing the truck driving off). Bigelow noticed that Jones attitude towards him changed after this incident.

Al asks about typical schedule – 4 ten hour days – Bigelow points out that if you rush through the route you can leave for the day…. Al – doesn’t that mean you are encouraged to cut safety corners? Bigelow – “Yes.” Al – so you don’t work 10 hours – how much time do you put in? Bigelow: 5 hours – jokes that’s a long time compared to some other trucks which do it in 4 hours.

Al points out that when Bigelow filed his Union papers that Karpinos and Stancil (Town Manager) would be aware of that… Al – do you think they shared that information with management? Bigelow – “I suppose”

May 11th meeting with Mayor Mark Kleinschmidt (a lawyer)

Al, what did the Mayor suggest about the complaint of Feb. 12th (employment discrimination complaint for being passed over on the driving job) – Mark supposedly told him to move on it, to not let the EEOC’s clock run out….

They explore the water/radio incident – Bigelow – the cap was off, no water, I called in for more water – asked Larry Stroud to bring some – Al – “were you belligerent” – Bigelow – no, “I’m not crazy” – just asked for water….

They explore the EEOC complaint – has it been discharged? Bigelow – No. Al – 4 1/2 months before action at that point? Yes. Al – Did you file a EEOC retaliation complaint after being fired? Bigelow – Yes.

Back to Biden incident on 7/22. Did he recall cursing in front of citizen? Bigelow: No, I don’t curse. Al – Did he recall making comment about $500 plate meals or the “common man”? No – he might have made some kind of comment to Clark but “common man” doesn’t sound like him….

Al – Did Bigelow have any confrontation with folks on Greenwood – a particular woman? No confrontation though he did take a few pictures of a particular residents yard where the yard waste was handled extremely poorly…but there was no confrontation.

Al – Did you wave your hands or branches around? Bigelow – I don’t carry myself that way…

Al holds up a document that outlines the woman citizen complaint. He says the Town didn’t redact the woman’s name – he’s uncomfortable doing that – this was presumably Ms. Johnson who didn’t want her name revealed.

Town attorney quickly says – yes, redact, but also points out that the Town doesn’t necessarily agree that the name in the document was the same of Ms. Johnson.

Town cross-examines Bigelow. Short summary of Bigelow’s response: Lies, lies, lies.

Town: If other employees say you were belligerent, disruptive, etc. then they are lying? Bigelow: Yes.
Town: If other employees testify you cursed, they are lying? Bigelow: Yes.
Town: The citizens who complained, they are lying? Bigelow: Yes.
Town: The woman who hid behind her blinds? Bigelow: I don’t understand. I haven’t spoken to them, I don’t know what they said…

The Town lawyer starts her summation by observing that one party not considered this evening was “our citizens”. What would you have Mr. Norris do? He doesn’t have time, it is not his job, to manage Mr. Bigelow. He got complaints from citizens. He had reports of incidents. He didn’t react directly but prudently engaged HR and an outside consultant to get at the facts. The facts demonstrate that there was retaliation – not against the employees – but the citizens.

Al sums up – note how Mr. Clark and Mr. Bigelow are lumped together – note how von Der Lippe’s report is on both – that there is frequent confusion as too who is who – why are these two men lumped together – because they both are trying to improve work conditions – they filed grievances – they both tried to Unionize – “that’s the real serious incident as far as the Town is concerned, trying to organize”…

The evidence doesn’t support the actions – the result was manufactured to get these guys out – read the 7/22 report – it’s clear that this was two guys speaking behind the truck, that is what the memo says…

Justice in Chapel Hill shouldn’t rely on people calling in on a phone to testify – that’s not justice – this is a reflection of a bigger problem – no wonder other public work employees are afraid to testify…

Public Works is stuck – its frozen – this is more than an issue involving two men, safety incidents – this is about a long standing issue of how we treat folks in Town – finally calls for “an end to this farce”

Relates how he called someone who works in the service industry to see how they would handle such incidents – he said – “they wouldn’t let it go”, they would go talk to the customer within a week, they would get the facts and fix the problem….

Note: 10:20pm. Another recess as the Board organizes the next phase.

NOTE: I have tried to put all direct quotes in quotes and accurately paraphrase/summarize the rest. I will brush this post up later for readability.

10:25pm Anita returns to explain the next steps. Board plans to call interim HR director – a witness on neither sides list. The Board starts by calling Mr. Jones back to testify.

Al – Norris is a fine man – don’t let him fall on his sword – don’t be confused on who decided to fire these men – it wasn’t Norris (brings up Harv Howard, etc. – something happened there…).

Board member Delores Bailey – Who controls the crew? Jones: The driver (Mr. Jones). DB: How long did you work with Mr. Bigelow? Jones: 2 – 2 1/2 years. DB: Was it only at the end that things went bad? Jones: Yes. DB: What bothered you about Mr. Bigelow taking pictures? Jones: It was strange, it didn’t make sense. DB: Back to the microphone incident – how loud was Bigelow? Jones: The truck is loud, you have to be loud to be heard.

DB: Whose job was it to get more water? Jones: The crew leader. DB: You. Jones: Yes.There was water but not ice, you could drink it. Jones noted that Bigelow was more than loud but “angry” during the incident.

DB: About the Biden incident – did you hear the comment? Jones: No, they were back of the truck. DB: Were they physical? Jones: No. DB: Are you aware, at any time, of any physical intimidation by Bigelow? Jones: No, not to my knowledge. DB: Not “in your face” (as has been testified). Jones: No, never.

DB: You have seen Rev. Bigelow angry, have you had a chance to talk him down? Jones: Not really – after the microphone incident did offer to buy ice for water to calm the situation down…

Board calls CAI von Der Lippe.

Anita Badrock – why did you ask witnesses to sign confidentiality agreement? VDL: Not me, that was the Town’s requirement.
AB: Was there a specific set of questions you asked each witness? VDL: No, not all witnesses – just Town employees.

AB: OK. Please explain on part of your report – a little confusion – it appears that it says that Mr. Bigelow hollered over the radio asking for water, you report that it was “disrespectful” – AB: Later on you say when you talked to Mr. Stroud – you asked about incidents – and he didn’t mention the radio incident. VDL: Yes, that’s a typo. AB: So you have a typo in a final report submitted to the Town that completely changes the sense of the answer? VDL: Yes, it was a simple typo. AB: Is there any more typos, typos that change the meaning of the report? VDL: No, maybe a spelling typo.

VDL: “Let me explain though” that Mr. Stroud was very stressed out, that he was quite distressed, that it wasn’t just Stroud who spoke of the water cooler incident, other employees mentioned it.

AB: Who did you file the report with? VDL: Him, the Town Attorney.

AB: Did you ask the employees during the interview specific questions about these workers? VDL: Yes, I asked specific questions about various incidents? I asked did you have any knowledge of Mr. Bigelow’s behavior, etc. (CW: I believe AB is trying to establish if the questions were leading, did the questions shape the answers).

Another board member ask if there are notes or recordings of the interviews… VDL – informal notes, not recordings (I believe he said that, it was a bit muddled).

AB: Have you done any other work for Chapel Hill? VDL: No (CW: VDL seems pretty uncomfortable, wouldn’t blame him for wanting to put Chapel Hill in his rear-view mirror).

DB: Do you know why CAI was hired? VDL: No.

Anita has had to remind the smaller crowd, about 35-40 people now, to keep it down. Been a long evening – lots of murmurs.

Board member: Do you know why CAI was hired? VDL: My impression was that the Town wanted a neutral objective analysis. BM: Asks about Mar. 23rd contract… VDL: I don’t know that contract – my understanding is that the contract involved some work on wages/compensation study.

AB: Let me ask about your bill – why did you do a background check? VDL: That is standard procedure – wanted to check to make sure that the two individuals – they were described as belligerent – every indication was that the two were aggressive, intimidating – all the coworkers, citizens, etc. said they were aggressive – I did a background check to make sure they were not dangerous – to protect myself – all indications were I needed to be careful….

BM: All the information was public knowledge? VDL: Yes, available at Courthouse.

Anita calls interim HR director.

BM asks – do you know why CAI was hired? HR: We wanted someone outside of the process – didn’t have time to do what can be laborious procedure – had worked with them before. BM: Do you know why it took so long – 3 months – to call in CAI? BM: Is this typical to hire someone to come in? HR: We have done this before.

Another BM: If contract was let Mar. 23rd but VDL didn’t start investigating until Sept… What did CAI do until then? HR: They did a wage study and another personnel investigation which was unrelated to the Bigelow/Clark incident.

BM/DB: What was the 2nd “serious incident” you (HR) met Mr. Bigelow on 7 days after the 1st incident? (CW: Seems to be some confusion on Board, staff and Bigelow’s counsel as there are 2 second incident meetings).

That second “serious incident” was about Mr. Bigelow’s EEOC complaint about being passed over for the drivers job. HR finally decided that the allegations within the EEOC grievance weren’t supported by facts and rejected the claim of bias.

AB: What is the EEOC process? My understanding that filing a EEOC complaint affords an employee some protection from retaliation – is that true? HR: Had two possible paths – Town decided to file a position statement with EEOC instead of pursuing mediation. EEOC investigation still active.

AB: Asks a series of questions probing pre-disciplinary process. The men were notified 24 hours prior, did the two know what the “serious incident” was? HR: Wasn’t working as HR director at time but generally it is just a notice – in this case it was a simple statement – that a hearing was being held to discuss a “serious incident”.

AB: Asks why counsel for the employees (Al McSurely) wasn’t provided details on the allegations prior to pre-disciplinary hearing. HR: I don’t know – that’s a question better asked Mr. Norris.

Shifting into a new mode, Board will start asking both parties questions. About 40 people left to listen in.

Board Member(BM) to Norris: Have you ever fired anyone before? Norris: No. BM: What kind of safety issues have we dealt with – twisted ankles, etc.? Norris: Usually twisted ankles – 8 accidents this year – 15 years ago collector hit – before his time.

DB: I understand that the woman is frightened – when is it that the woman had an encounter that frightened her so terribly?

Norris: The second incident in September – after the 7/22 Biden incident – this information also came from husband ( NORRIS CLARIFIES THAT THE WOMAN ON THE PHONE AND THE FRIGHTENED WOMAN ARE DIFFERENT).

Norris: It was clear that she had had a series of incidents between these two workers from 7/22 to September. Richard Terrell, in his 34 years, never encountered this level of complaint against workers.

DB: Why weren’t these complaints being addressed? BM: Is it fair to say that this involved problems in the waste management organization? AB: We can’t talk about that… BM: In general, could we say there was a failure to move on complaints? Norris: …fair to say…

DB: Do you know Mr. Bigelow to have been a good employee up to these incidents? Norris: Yes, he was a good employee. DB: Because we try to hire good employees to start with? Norris: Yes. As former Chief Jarvies said – Mr. Bigelow was a good hire? Norris: Yes.

Norris works back through the time-line and, once again, pinpoints the decline in Bigelow’s performance/beginning of serious incidents to Bigelow’s being passed over for the driver job.

Norris and CAI interviewed 2 citizens involved filing the 5 citizen complaints. One of the remaining 5 declined to participate. There was a total of 7 complaints made amongst the 5. Norris confirms that von Der Lippe’s report and testimony was complete and accurate.

AB: Prior to the final evaluation and disciplinary hearing Mr. Bigelow’s counsel asked for CAI’s documentation – do you know if he got it? Norris: HR was gathering it but I can’t confirm he got it…

AB: It is reported by CAI that Mr. Bigelow made a call to one of the witnesses – confronted them – which made them anxious – indicated it was akin to witness intimidation – were the two told not to contact a witness? Norris: Workers weren’t told in writing not to contact witness but they were told verbally…

AB (one of the best questions of the night): Did Mr. Bigelow know that his job was in jeopardy? Did anyone tell him that if he continued his behavior he would lose his job? Norris: Didn’t tell them – was something their direct supervisor Larry Stroud was responsible for – Norris wasn’t aware of whether Stroud asked them or not…

Next up – Board questions Bigelow ( 11:30pm ).

Anita Badrock (AB) – In reviewing CAI report it strikes me that 10 fellow employees made similar statements about you being intimidating, harassing, combative – these statements are very similar – why is that? 10 employees – so similar – why?

Bigelow: Some were angry because of his role in getting previous superintendent fired (AB quickly interjects – we can’t talk about that). Said he rubbed some folks wrong way – that CAI/Town picked people who didn’t like him to interview – says “if you read off their names I could tell you a reason” for each…

AB: Explain what happened at Biden event – did you ask for address of where event was going to be held? Bigelow: No. We did ask what was happening – she said that Biden was coming – we might’ve said something as we drove away…

In response to AB question on “a behind closed door meeting” between Clark and him to orchestrate this situation (?) Bigelow responded they met to discuss unionization, that they certainly didn’t want to do anything which would jeopardize their organizing efforts…

AB: Were you surprised when you were called in and given administrative leave? Bigelow: Absolutely was surprised, thought he was being called in to discuss EEOC complaint, no idea his job was in danger…

BM asks about the photographs, understands why some of the pictures were taken to document safety issues but what about unrelated photos he had taken?

BM: Did you consider taking pictures of other employees might be considered intimidating? Norris: “wasn’t going around taking pictures to take pictures” – did it expecting that he might need to justify complaints – he was taught to carry a camera around with him so he could document unsafe conditions, accidents and other issues.

BM: Did you realize that by leaving the pre-disciplinary hearing that management would have no facts from you to move forward on? By leaving you didn’t give management a chance to understand what was going on…

Bigelow: “No!” I did what my counsel suggested, leave the meeting. Thought Town would get back with them and not move forward on firing him. Al McSurely adds in that they didn’t expect any movement and, rather, expected the Town to provide more information.

DB: Asking about Greenwood incident. “What did you do to frighten this woman?” Bigelow: It didn’t happen – didn’t yell – didn’t confront – wasn’t sure, in any case, who lady was – wanted to talk to woman who was scared to understand why she was so upset…

BM asking about Town evidence item #9 – notification of pre-disciplinary conference – letter from Mr. Norris. BM read out the letter and highlighted two parts: participation in conference was voluntary; that after the conference he (Norris) would take appropriate action including and up to dismissal.

BM asks Bigelow to clarify his previous statement where he said he didn’t think he could be fired because of these proceedings. Bigelow fumbles – “maybe I misunderstood” your question. BM: You did receive this letter? Bigelow: I have received a lot of letters. BM: Did you understand that this letter asked for you to participate and could lead to dismissal? Bigelow – shakes head – no….

BM brings up several other documents which fairly clearly warn of the consequences of disengaging from the process – especially the pre-disciplinary conference.

Bigelow: I did what my counsel advised….

Al McSurely, Counsel, weighs in – Notes Anita Badrock already highlighted the very short timeline between the letter and the conference – notes that the letter is vague about reason for conference – says “even if I was Johnny Cochrane” he couldn’t respond in 1/2 hour…

Al asked for a report of the incidents and allegations that they could use to prepare a response – noted the CAI report hadn’t even been filed with the Town at the time – Al points out that this report was filed one day later but was obviously the basis for the pre-conference action and the ensuing dismissal.

Both Town attorney Snead and Norris say they recollect the meeting differently – that there was no agreement to provide additional information to prepare and respond…

BM: Did you get the information? Al: Yes, a couple days before they were fired. Town lawyer Snead: At no time did they ask for the information prior to the dismissal.

Midnight and both sides are being given an opportunity to summarize their cases and add additional detail.

Al – Pretty much laid out the case – recall we expected further information – didn’t get a chance to respond in detail, etc. – short and sweet…

Snead – Wants Board to know that the Town tried to intervene several times…

Deloris Bailey asks Mr Bigelow when he thinks things changed? Bigelow – it was when I filed the grievance (EEOC) – “they were out to get me..well, they got me”

DB: Do you think your attitude changed? Bigelow – I’m a preacher…carries himself as a man of the lord…

AB: Next steps – over 6 years we have upheld Town recommendations, we have also disagreed. Will deliver a non-binding recommendation to the Town Manager who will have 14 days to respond.

I will be reviewing, clarifying and editing this post over the next day or so.

The Board acquitted themselves quite well. Kudos to Chair Anita Badrock for affording both sides adequate time to present their case. She managed the meeting effectively, tempered the crowds responses. Now it’s time for their thoughtful consideration.

This concerted effort sends a clear message – the underlying tensions still exist because the reasons still exist and they won’t go away without a clear and open review. That could start by supporting the two workers request to have a public review hearing of their case.

Tom Monk steps up to the podium. “The Town generally does a good job with sanitation – things smell good – this doesn’t smell good.” Asks for the men to receive unemployment benefits.

Samuel Monk chimes in – “this is a case where the workers have been discriminated against” because of labor organization efforts.

John Heuer concerned about reports of dismissal calls for unemployment benefits.

Wes Hare steps up – came here when Howard Lee was Mayor – he’s been part of the problem for forty years. It just doesn’t make sense, from what he hears from the folks he trusts this is a mess. Agrees with Monk that “this does stink”.

Michelle Laws – reflects on what Mayor Kleinschmidt said in State of the Town and the reality of town. Believes we are following national trend of two nations – one white, one black. We are moving towards two towns – one minority, one white. One rich, one poor. Heard nothing about the poor, the low wage worker, the two towns. Back to Bigelow/Clark – can’t believe that they were fired during the worst recession since the Depression – left with little financial support. Calls out Town on unemployment benefits – says that inspite of protestations of not intervening the lawyer representing the two has received a pile of documents from the unemployment commission that clearly was aimed at dissuading the commission from granting aid.

Robert Campbell – “I come tonight to call for justice…” I come tonight seeking justice for the two workers – it is about human rights and doing the right thing. “I thought scrooge was dead” but in the middle of the holidays we fire these two because of the outcry of one citizen. Since when do we allow one citizen to start a process that deprives the two of their due process. “I don’t need to remind of what happen yesterday….” in the ’70′s when a black student was killed and Chapel Hill was fire bombed….

Kerry Bigelow – Holds sign up that says “I am a Man”. Thanks for support of the folks that turned out. Disappointed on citizens who aren’t paying attention. They ["the Council"] count on citizens “on the sideline” being asleep. It is time for folks to get off the side-lines. His daughter gets up and asks Council to “get on the right side of history”.

Steve Bader – Emphasizes there is no legal requirement for the Town to send the ESC a pile of documents. Many employers don’t send any documentation. Also asks that the Town doesn’t send any managers or staff to the ESC hearing being held in two days. Says someone in Town has violated rules by signing a contract they shouldn’t of – including 10′s of complaints – no movement on that – but on one citizen’s complaint these two were discharged. “These two brothers were stewards” – they were trying to be good stewards of the Town. If the Town doesn’t show up Thursday then they will get their benefits. Why are we just hearing today about an ombudsman – that’s a crime.

MiriamThompson – “We elected you” – we didn’t hire the Town Manager, you did. A Town Manager that hires a notorious union busting group like CAI – who created a bias report. We didn’t hire a Town Manager that hasn’t let the employees confront their accuser. You were elected to support all of us…let’s not enter the year with a stain on our hearts…..

Clyde Clark – The same discrimination is going on. To him it seems one man is running the Town and the Council is “dropping the ball” and following his lead. [CW:presumably the Town Manager?]

The Raging Grannies file out singing “…we are all in this together….”

They will have 14 days to appeal the decision.

It appears Council was informed Wednesday night but, as per the Town’s rules, played no part in the decision.

Chris’ evaluation “will focus on the characteristics that have been identified that we need in a chief and the extent to which his behavior fulfills those characteristics. The basic characteristics we are looking for were defined in an extensive public input process in 2007 when Chief Gregg Jarvies retired.” according to Town Manager Roger Stancil.

From what I know of the 2007 process, what I know of the direction the department is heading in, Chris has the required characteristics Roger is looking for.

Best of luck Chris.

From a late breaking Town news release:

Chapel Hill looks within to fill police chief position
Posted Date: 10/29/2010

The new police chief for the Town of Chapel Hill may be selected through an assessment process that is expected to conclude in November 2010.

Brian Curran, who has served the Town for nearly 30 years, announced his retirement in April 2010 and will serve until December 2010. Town Manager Roger Stancil has commended Curran’s achievements as chief, including his work to create a leadership development program, create a diverse command and supervisory structure, expand community policing efforts, and take the lead in innovation and teamwork to find solutions to community issues.

“Chief Curran has been the epitome of community policing throughout his career,” Town Manager Stancil said. “Under his leadership, the department renewed its commitment to community policing. His thoughtful promotion process created a group of emerging leaders in the department. His current focus is on a strategic plan for the future of the department and development of leaders who can implement the plan.”

Town Manager Stancil informed the Town Council in June 2010 that he believed the best way to continue this momentum of progress in the department was to first consider internal candidates for the chief’s position. Internal candidates eligible to apply for the position were three captains and the two assistant chiefs. One of those five individuals expressed an interest in the chief’s position, Assistant Chief Chris Blue.

“A rigorous set of experiences and expectations has been established to assess Assistant Chief Blue’s skills in real time with real issues,” Town Manager Stancil said. “As with other assessment processes, this one will focus on the characteristics that have been identified that we need in a chief and the extent to which his behavior fulfills those characteristics. The basic characteristics we are looking for were defined in an extensive public input process in 2007 when Chief Gregg Jarvies retired.”

The assessment center process is not new to the Town of Chapel Hill. The process has been used to fill numerous positions, including the review in 2007 for a chief to replace Gregg Jarvies. Assistant Chief Blue was the second highest ranking candidate in that process.

Because the assessment process is now under way, Assistant Chief Blue will not be available for comment about his experience with the assessment center.

The Council chambers were definitely rocking last night.

The strange issue of Town employees Clyde Clark’s and Kerry Bigelow’s suspension took center stage as a coalition of local social justice groups and supporters presented their grievances to Council.

According to their petition (OrangeChat) three (Stan Norwood, bus driver) employees were disciplined in “retaliation against workers …for filing grievances relating to racism, abusive management, and health and safety concern”.

This isn’t the first allegation of racism within the public works department (here is my post from 2008, Council Oblivious:How Long Must This Go On?).

I’m waiting with interest to see the results of Town Manager Roger Stancil’s “complete, thorough and fair investigation.”

The petition alleges that the Town hired Capital Associated Industries (CAI) in an effort to derail worker efforts to organize. I know a few of the sitting Council members – Mark Kleinschmidt and Sally Greene, for instance – have been quite clear in their support of labor.

Hiring a consultancy at odds with the declared intent of the Council seems strange but I have observed such inconsistency before – just another case among many (it’s not always clear why a particular consultancy is hired, sometimes it appears that a consultancy is hired to “bless” an existing policy, rates paid are out-of-whack at times, existing relationships between principals of the consultancies and the Town aren’t always disclosed, etc.).

As far as the presenters this evening, Al McSurely stated we were paying $60,000 to CAI, a group notorious for its “union busting”. I spent a few moments googling CAI to see how the claims of “union busting” held up.

I found much of this material on CAI’s website www.capital.org. [BOLDs are mine].

From an event they hosted:

WHAT: Capital Associated Industries, Inc., (CAI), the largest employers’ association in the state, in conjunction with the Employers Coalition of NC, will be holding a legislative breakfast to discuss collective bargaining in North Carolina. CAI anticipates over 30 legislators to attend the event, called The Difficulties in Governing With Unions. Speakers include Greg Mourad, director of legislation for the National Right to Work Committee.

Invitation to Event (PDF)

Their CEO Bruce Clarke on the Employee Free Choice Act:

Business leaders contend that the current process for forming a union is both fair and optimal. If secret balloting is optimal for every other election in America, they say, why not union elections? Union organizers and businesses are both able to make their cases in those elections, says Bruce Clarke, president of Capital Associated Industries. “If a decent employer has time to do that, they’re going to win the election,” Clarke says. Clarke adds that unions want to circumvent secret ballots because they don’t want to lose the elections. (CW: debatable at best)

Triangle BizJournal

From CAI’s online white paper Welcome to CAI’s “Employee Free (Forced) Choice Act” Guide

What Might the New Union Card Look Like?

Unions claim that EFCA preserves the secret ballot and that EMPLOYEES, not EMPLOYERS, would then control whether there is a secret ballot election or just a public “card check”. This is untrue. The fact is that the actual language on the union card itself controls how the card can be used. It is a binding legal document. Guess who designs the card and prints the copies? Yes, the labor union controls the card language. There is NO possibility that unions will print cards which give employees the option to choose a secret ballot election. Further, nothing in the law requires them to offer that choice. (CW: really debatable)

From CAI “constituent” letter template they ask folks to send to the Legislature:

Federal Arbitration of a Collective Bargaining Agreement is an Oxymoron

This bill imposes arbitration of all undecided contract terms after a brief 120 day period of failed negotiations. Every aspect of the work, the pay, the benefits, the rules and the work processes can be put before this panel. This is not bargaining in any sense of the word and it would lay a foundation for future relations between the parties that is fatally flawed. American entrepreneurs and business leaders should not and will not stand for outside determination of their work methods and expense levels. They will shrink US operations and grow in non-union facilities. In Canada, where they have experience with an EFCA-like law, companies have actually closed after dissatisfaction with an arbitrator’s decree (see the E. Gagnon Ltee case).

From their 2010 Summer update:

“Organized Labor Reaches a Roadblock”: Will Focus More on Influencing Executive Orders and Appointments; Watch for a November Surprise?

A senior union official, Stewart Acuff, says labor hopes to get EFCA-like changes from the NLRB:

“[If] we aren’t able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action to once again allow workers in America access to one of the most basic freedoms in a democracy–the freedom of speech and assembly and association so that workers can build the collective power to challenge the Financial Elite and Get America Back to Work.”

The President has made several pro-labor appointments recently, some on a recess basis. The NLRB now has the votes to make major changes in process, policy and regulations governing a wide spectrum of labor relations topics.

More recently, there is talk of an “November Surprise” where lame duck Members of Congress force through pro-union legislation, perhaps as part of a “must pass” emergency spending bill. Journalist Peyton Miller said recently:

“While he’s stopped campaigning for EFCA, the president may yet have an opportunity to sign it in some form. AFL-CIO president Richard Trumka is determined to see card check attached to an urgent bill while Democrats still have decisive congressional majorities. Democratic leaders have indicated that the lame duck session following the November elections may be the best opportunity.”

What does all this mean?

Washington politics and processes are very unpredictable and dependent on the status of seemingly unrelated bills, pressures, perceptions and events. The completion of health reform may open up more time for legislative mischief in the workplace. Stay vigilant and stay tuned!

Call on us if we can help.
Bruce Clarke (bruce.clarke@capital.org)

You might recall that the National Labor Relations Board was weakened by the Reagan administration, ignored mostly by the Clinton administration, gutted by the Bush administration. Obama promised to restore some of its former powers during his candidacy – claiming possible “surprise” is disingenuous at best.

Finally, CAI is a member of the Coalition for NC Jobs (along with other notables like the North Carolina Pork Council, National Right to Work Committee, North Carolina League of Municipalities, etc.).

In January of 2006, associations and businesses concerned about pro-union legislation at the North Carolina General Assembly (NCGA) joined forces to form the Coalition for North Carolina Jobs (NC Jobs). For the past two years, NC Jobs has successfully stopped every pro-union bill and amendment at the NCGA even after labor unions gave hundreds of thousands of dollars to legislative campaigns.

Unions such as the Service Employees International Union (SEIU), International Brotherhood of Teamsters (IBT) and American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) are intensifying their lobbying and grassroots efforts at the state and federal levels to obtain collective bargaining rights for public employees, which is currently prohibited under North Carolina law. It could mean tens of millions of dollars in dues revenue to their unions.

To combat the unions’ dollars and clout, NC Jobs must expand our membership and increase our grassroots activity at both the federal and state levels.

If the Council’s intent is to support “collective bargaining rights for public employees”, then they need to explain why hiring CAI makes sense.

Just got home from tonight’s Council meeting. The meeting ended with a closed session to consider personnel matters so they shooed the remaining few folks out the door.

There are two hot personnel issues that I can think of that need Council’s attention.

One is the strange and unfortunate story of Town employees Clyde Clark and Kerry Bigelow. Tonight a number of folks joined “the two workers along with Chapel Hill Transit bus driver Stan Norwood” who “have protested what they call management intimidation and health and safety hazards in the workplace” (OrangeChat) to question their work suspension (the Chapel Hill News’ OrangeChat has more here).

The second, and much more pleasant piece of business, involves selecting our next Chief of Police to replace Brian Curran (Farewell Chief!). [UPDATE] It wasn’t to consider a new Chief as this responsibility, as Fred reminded me, falls squarely on Roger’s shoulders.

Comments by Brian and Town Manager Roger Stancil lend credence to the current “conventional wisdom” that the next Chief will be drawn from our current ranks. Both Assistant Police Chief Chris Blue and Assistant Police Chief Bob Overton top the lists of folks I have informally polled.

I met Chris years ago when he was working to strengthen our Town’s response to gang-related issues. I have run into him fairly often since as he worked to build a tighter relationship between the community and the police force. With broad experience within our force, a strong working knowledge of the “Chapel Hill way” and a track-record of reaching out to work beyond a strictly “law and order” approach to policing, Chris would be an excellent member of the Town’s management team.

While I ran into Bob off-and-on over the last few years, it is only recently that I have gotten to know him. Another strong candidate with an extensive breadth of experience and a firm grip on the vagaries of Chapel Hill law enforcement. Bob would also make an excellent addition to our management team.

I’m not aware of any other candidates but if there are any I expect Roger to use both Bob and Chris as the yardstick to measure them by. Brian has already set our department on a new course, we need their type of leadership to forge ahead.

As we wait to see if selecting the Chief was actually the reason for holding the meeting, there is another opportunity to meet both the apparent front-runners Nov. 4th at the next community outreach session (INFO).

One point that I thought needed answering, why wait for NC legislative approval, was dealt with. Sally Greene and Mark Kleinschmidt both seemed to endorse moving forward creating a board that had all the powers of review except that of perusing personnel records (which will require statutory approval – something already done elsewhere).

Barry Freeman, one of the protesters arrested 2 years ago at Chapel Hill’s Army recruitment office, laid out the case for not waiting:

“A review board can be set up that receives complaints doesn’t necessarily have to go call some policeman and look up his record,” Freeman said. “That might be nice, but without that you can still have 90 percent of the value of a review board. Waiting for the General Assembly to act is just putting off for longer than the two years we’ve been waiting to get this going.”

I’m still thinking through how to best deal with the issues which sparked the call for such a board.

The current Council/Mayor special review committee is too insular to qualify as an instrument of transparency and greater public overview.

Creating a new overview group, though, also runs the risk of building walls between the community and our police force. In many ways, our current force, and its management, have worked to bridge the gaps exposed by a number of recent incidents.

I participated in the recent community/police forums which was supposed to create a list of issues that the force needed to focus on. There were several problems, unfortunately, with those forums: the process was stilted and forced – crafted to avoid “hot spots”, the output of the forums was watered down substantially at the summary level (distinct critiques were lost in massaging them into more general categories) and instead of an iterative approach – taking input from the first set of forums, creating responses and then bringing the public back in to refine their critiques – the point-in-time sample was seen as complete.

Without regular community engagement, these forums cannot be seen as a substitute for a more formal review board.

There needs to be quite a bit more community discussion on how the board will function, how the membership is recruited and appointed, how the process won’t build walls but bridges between the force and the community, etc.

Oct. 11th the Council as a whole will weigh in with their opinions.

[UPDATE:] Joe had Indy comments opened.

Quick note from this evening’s Council meeting. Council member Laurin Easthom renewed her reasonable request (reviewed here [THE LIBRARY AND THE FREE LUNCH]) for additional fiscal analysis of the recently approved Library expansion.

Her original April 2009 request to the staff and Town Manager for a range of specific funding scenarios to manage both the transitional and additional operational cost of the Library expansion has been rebuffed successfully over the last year.

Why the delay?

Possible political embarrassment to some of the Council folks who pressed for expansion in-spite of foreseeable negative consequences. A real analysis would reveal the weakness of the current estimates for these costs.

Tonight’s problem, though, is that Laurin is well within her rights as a sitting member of the Council to request staff input and that foot-dragging is not acceptable. Rather than strengthening her call for informed decision making, some of her colleagues have tacitly participated in this delay.

Tonight her re-request for this information spawned a half-hour of meandering Council commentary.

Instead of a clear directive to staff to produce the report, Mayor Kleinschmidt punted the issue to later this evening. Mark, rather than reaffirming his colleagues simple, reasonable request, dispatching it quickly, instead, muttering several times that “folks are waiting” and “we’ll discuss this after 12:30″, pushed it to the Council meeting dead zone.

Anyone that still buys the myth former Mayor Foy touted of a Council grounded in collegiality should take heed how the tactics of the imperial mayoral-ship he fostered impedes respectful dissent even within the Council itself and harms a transparent, reality-based approach to decision-making.

There is a slew of technologies they use to track usage, following folks as the hop-skip-and-jump across the world wide web. In this “social networking” world it seems like many people wait until an inevitable crisis before taking even the most rudimentary precautions.

Even then it isn’t always obvious who is prying or how much snooping is going on.

I am not a member (and never plan to be) of many social networking sites, like FaceBook, because of the aggressively antagonistic approach they’ve taken towards maintaining a balance between exposing folks personal data and commercial gain. I vehemently disagree with FaceBook’s Zuckerberg that “the age of privacy is over” and that users should just suck it up and let him and his ilk commoditize our private lives for his personal gain (FaceBook certainly doesn’t offer a compelling enough value proposition for me to willingly trade away more of my privacy).

Even the simplest of activities, asking “questions” of the ‘net, can be used as fodder for the anti-privacy grist mill. For every move to secure folks basic right to that privacy, the industry counters – sometimes with the full complicity of the companies that develop surfing technology (think Micro$loth).

The Electronic Frontier Foundation, an organization dedicated to maintaining individual rights online, has teamed with the Tor project (software to “defend against a form of network surveillance that threatens personal freedom and privacy, confidential business activities and relationships, and state security”), to roll out a new Mozilla Firefox browser extension that encrypts your communication to a variety of services.

Encrypting communication with Google isn’t the same as eliminating their ability to build a profile of you based on your questions. Instead, encryption will make sure that your ISP (in my case ATT) and any other internet service provider between you and the end-service provider can’t snoop on your traffic and build their own profile of your activities.

Other than Tor, which anonymizes interactions with web-based services, there are a wide variety of additional extensions to Firefox available to combat Google and other service providers snooping.

• BetterPrivacy – removes “super-cookies” which allow sites to track your wandering across the ‘net
• Redirect Cleaner – new websites can’t discover what site you linked in from
• AdBlock Plus – the king of ad blocking extensions
• NoScript – limits sites use of JavaScript and other technologies to work-around privacy protections.
• Ghostery – actively blocks tracking by a wide range of advertising tracking companies
• Tor Button – manages use of TOR network which confounds network-based tracking of ‘net usage

While I expect CitizenWill readers are the kind of folks who wouldn’t casually give away financial or personal information to a complete stranger on the street, it isn’t always obvious how what we do online leaves tracks in the wider world – technology can help protect your privacy, the best protection remains a healthy dose of common sense and “eternal vigilance”.

There are no consistent set of laws that dictate basic privacy protections online, especially when it comes to commercial harvesting of what many of us consider personal information. The minimal expectation is that the “contract” between you and the service provider is clearly posted, easily understood and has provisions for terminating access gracefully.

Read sites TOS (terms of service) and privacy policies – including how they manage and protect your personal information – before entering into that “contract”. Understand what 3rd parties have access to your details, how you can opt out or eliminate what you share online. Determine if the benefits of the service are commensurate with the value you receive (you best know the value of your life’s details).

Finally, even though the rules that govern commercial entities are far from complete and our ability to demand fair treatment quite limited, we can demand basic protections on websites our own government provides.

For instance, Chapel Hill’s (now defunct) Technology Advisory Board, strongly recommended 5 years ago that the Town’s own website had a clear and easily accessible terms of service/privacy policy. As of 2010, that more than reasonable request is not part of the Town’s commitment to serve the public’s interest.

Ever since I turned 18 I’ve waited for the call.

Master jury lists in North Carolina are randomly drawn from voter rolls and driver license records. Having been a licensed driver and voting maniac (all elections except one 2nd primary) for over 30 years, I expected to have been selected at least once before now, yet it was only last month I was notified of my first opportunity to serve.

Given my activist background, I imagined that being selected to serve in court was a long shot. Still, getting my chance to discharge this citizen obligation was rewarding enough. Yes, I know it might sound a bit crazy to many folks, especially those who have tried and possibly succeeded in ducking the call, but I was excited my turn finally arrived.

Orange County has a fairly efficient system. You get a letter a month beforehand. You’re instructed to call a particular phone number (919-644-4516 in Orange County should you happen to Google this post) the night before to check your status.

After returning from this evening’s Board of Commissioner’s meeting I made that call.

The disappointing recorded message was short, to the point – “All jurors are excused. This concludes your jury service.”

Excused, yes. Concluded? Just doesn’t feel that way.